Is Torture Insurance A Smart Investment?
posted by Dave Hoffman
The Washington Post reports that CIA operatives and other government officials are buying “government-reimbursed, private insurance plan that would pay their civil judgments and legal expenses if they are sued or charged with criminal wrongdoing.” According to the article, the insurance costs around $300 a year and “would pay as much as $200,000 toward legal expenses and $1 million in civil judgments. Since the late 1990s, the CIA’s senior managers have been eligible for reimbursement of half the insurance premium.”
Suppose you are spook, who either already has, or plans to, engage in activities that some pesky court might deem to be torture. Are these policies a good buy? I have some questions.
First, I wonder whether the insurance contract is enforceable. Normally, contracts to indemnify promisees against intentionally illegal conduct are unenforceable, especially to the extent that the conduct is more than an “undesired possibility” and the promise “tend[s] to induce its commission.” Farnsworth, Contracts 5.2 (4th ed.) This makes for close calls (securities fraud indemnification, for example). But, in the event that these policies come due, torture won’t be a close call. That is because it seems obvious that the reason there is a run on these policies is that that our intelligence agencies, together with the futures markets, are betting against continued Republican occupation of the white house after ’08. As the article points out,
‘if an individual does get sued in the course of their official duties, then you get the biggest law firm in the world to step in’ — the Justice Department. Justice regulations allow defending federal workers if the conduct is within the scope of an employee’s job and doing so is in the government’s ‘interest.’
Presumably, a democratic victor in ’08 would face significant pressure to repudiate alleged torturers, and might decide that it isn’t in the United States’ interest to pay their legal bills. (The resulting potential lawsuits against the government remind me of the KPMG case.) In that event, presumably the anti-torture environment will be more stark, making it (a) less likely that the insurance companies will honor their contracts-to-defend; and (b) more likely that the merits litigation will go against the agents.
Second, the agents might think “who cares about the legal rule, won’t the company choose to defend me anyway to keep repeat business with the Agency?” This is a good argument, though it depends on a decidedly progressive relational contract theory. The company writing the claims is reportedly “a subsidiary of the private Special Agents Mutual Benefit Association created by former FBI officials,” and doesn’t appear to be or potentially subject to much public pressure. But according to (what looks like) the plan in question, they exclude coverage for “[d]amage arising out of willful violation of a penal statue or penal ordinance committed by or with the knowledge or consent of the member, or damages arising out of acts of fraud committed by or actual intent to deceive or defraud.” So the insurer has wiggle room in some cases to deny coverage.
Finally, I wonder about the interaction between this coverage and qualified immunity defenses. I assume that evidence of coverage would be a good indication that an agent’s purported good faith belief in the legality of his or her conduct was in fact not genuinely held. Perhaps this has been tested in an analogous context: do our readers know of a case on point?
(H/T TPM Muckraker)
September 11, 2006 at 3:23 pm
Posted in: Contract Law & Beyond
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Responses (6)
Chris Bell - September 11, 2006 at 6:36 pm
Question: Say a police officer destroys someone’s front door when conducting an illegal search. Immunity doesn’t apply. Who can I sue for the door? Does it come out of the cop’s pocket, or do all cops have some sort of government “oops” insurance?
Frank - September 11, 2006 at 6:44 pm
Yes, my sense was that the policy of most states was that a general commercial liability policy could not insure against intentional torts. But I have no idea if that principle applies to government actions. PEter Schuck’s book Suing Government may have some answers.
Paul George Anderson - September 11, 2006 at 10:25 pm
If I were in these people’s shoes I would not walk- I would run- to buy this insurance. The statement that “you get the biggest law firm in the world to step in” just isn’t true, because your superiors will decide that not “doing so is in the government’s ‘interest.’” The truth is that most of the time you will be sacrificed because your superiors are afraid that if they support you, they might look bad.
I know this because of what I saw a few years ago when I was a Deputy United States Marshal. In an eastern state near Washington, DC, a male and a female deputy were handling a prisoner in the marshals’ office. The prisoner, handcuffed, got his arms around the male deputy’s neck from the rear, with the handcuff chain cutting into the deputy’s throat, which would have killed the deputy in moments. The female, to save her parner’s life, shot the felon, a vicious thug who had killed other police officers and was a high escape risk.
I’m a big guy, 6’3″ and about 250 lbs, trained in hand-to-hand combat in the Marine Corps, as well as Federal Protective Service Police Academy, and CFLETC, the Marshals’ academy, and if I were there, I would have had to do the same, as there is no way to quickly pull someone off when he has his handcuffed arms around someone’s neck from the rear.
Based on my forty-odd years of military and police experience, I am sure that the shooting was completely justified. That deputy was moments from death. Yet neither the Marshals Service nor the US Department of Justice of which it is a part would do a thing to help or defend the deputy who saved her partner’s life. She was suspended without pay, had to hire her own attorney- and pay attorney’s fees out of her own pocket. Even though she was cleared by an internal investigation, it was only after she was completely cleared at the coroner’s inquest and her lawyer pressed the issue was she offered her job back.
Will Department of Justice lawyers defend employees? Yes, if you are a high level and politically connected bureaucrat. But the regular field troops? Not until hell freezes over!
Nate Oman - September 11, 2006 at 10:31 pm
Dave: My understanding is that qualified immunity is based on an objective test of whether or not the government actor violated clearly established federal law (that is not the right verbal formulation, but that is the gist of it) so I don’t think that evidence of good faith matters one way or another.
Dave Hoffman - September 12, 2006 at 10:20 am
Nate,
That’s a good point. Although I still think that evidence of awareness of illegality would help the plaintiff’s case-in-chief in a civil action.
arthur - September 12, 2006 at 10:31 am
F. R. Evid. 411 precludes the consideration of insurance by the judge or jury. The jury won’t know about insurance, and the judge might not either.
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